Embryo Fundamentalism

GW Law Faculty Publications & Other Works Faculty Scholarship 2010 Embryo Fundamentalism Naomi R. Cahn George Washington University Law School, [email protected] June Caborne Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Naomi Cahn & June Carbone, Embryo Fundamentalism, 18 Wm. & Mary Bill Rts. J. 1015 (2010). This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. EMBRYO FUNDAMENTALISM June Carbone and Naomi Cahn* The battle for the future of assisted reproduction technologies (ART) has been joined. The tacit compromise underlying assisted reproduction—no laws are passed that even tangentially sanction embryo destruction and no laws are passed that intrude on the profitability of fertility treatments—may be coming to an end. As use of ART has increased, so have calls for supervision and oversight. In the wake of “Octomom” Nadya Suleman’s use of in vitro fertilization (IVF) to give birth to octuplets, the calls to regulate assisted reproduction have become even more pressing.1 President Obama’s 2009 reversal of the Bush policy on stem cell research has increased the importance of federal oversight of embryo donations at the same time that those opposed to embryo destruction have stepped up efforts to preserve the thousands of unused IVF embryos for reproductive purposes.2 At the same time, religious communities ambivalent about ART have increased the calls to reform ART practices to bring them more in line with religious teachings and spiritually informed notions of human dignity.3 In this paper, we focus on what may become a new flash point in the effort to craft normative understandings about assisted reproduction. That flash point is the treatment of the hundreds of thousands of extra embryos created through in vitro fertilization (IVF).4 IVF involves extracting eggs from women undergoing fertility treatment (or sometimes from intended donors), fertilization of the eggs in a labora- tory, and implantation of the resulting embryos in the intended mother or a gesta- tional surrogate. Because the process of extracting human eggs is invasive, painful, * June Carbone is the Edward A. Smith-Missouri Chair of Law, the Constitution and Society at the University of Missouri—Kansas City. Naomi Cahn is the John Theodore Fey Research Professor of Law, George Washington University Law School. We thank Vivian Hamilton for her support of this project, Lindsey Nelson and Josh Marrone for their research assistance, and Caitlin Parker for all of her work. 1 See Naomi R. Cahn & Jennifer M. Collins, Eight is Enough, 103 NW. U. L. REV. COLLOQUY 501 (2009), available at http://www.law.northwestern.edu/lawreview/colloquy/ 2009/22/LRColl2009n22Cahn&Collins.pdf (discussing the responses to the Suleman case by state legislators, the media, and others). 2 See Sheryl Gay Stolberg, Obama Lifts Bush’s Strict Limits on Stem Cell Research, N.Y. TIMES, Mar. 9, 2009, at A18, available at http://www.nytimes.com/2009/03/10/us/ politics/10stem.html. 3 See discussion infra pp. 19–22. 4 See Virginia Linn, Pressure On to Limit Eggs in IVF Process, PITTSBURGH POST- GAZETTE, July 31, 2005, at A1, available at http://www.post-gazette.com/pg/05212/546513 .stm. 1 Electronic copy available at: http://ssrn.com/abstract=1585988 2WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 18:000 and expensive, doctors extract as many eggs as they can in each attempt.5 To increase success rates, doctors fertilize all of the eggs, allow them to develop for several days, and then select the healthiest (generally the most mobile) for implantation.6 To manage the risk of birth defects, and the impact on both mother and child, doctors prefer to limit the number of embryos implanted at one time. So state-of- the-art IVF today routinely produces extra embryos that may never be used.7 Patients generally freeze the embryos that are not implanted so that they will be available to produce additional children or for additional attempts if the first effort does not succeed.8 A large number of patients, however, ultimately choose not to use their frozen embryos, creating an issue about ultimate disposition.9 The choices often offered are to thaw and discard the embryos, donate them for research, or donate them for reproductive purposes.10 Each of the three options would take place more readily, however, if the law were to clarify the legal status of embryos, the mechanisms by which their progenitors could discard or transfer them to others, and the obligations of third parties involved in the process. And therein lies the rub. The status of embryos, which involves profound religious and philosophical differences and which has become the subject of entrenched political differences over the course of the abortion fight, lies at the heart of these developments. On one side of the debate is what we term “embryo fundamentalism,” that is, the insistence that embryos are unique human beings from the moment of the conception, and should be respected as such.11 On the other side of the debate are those who would 5 See Nicholas Wade, Clinics Hold More Embryos Than Had Been Thought, N.Y. TIMES, May 9, 2003, at A24, available at http://www.nytimes.com/2003/05/09/us/clinics-hold-more- embryos -than-had-been-thought.html. For an overview of what the in vitro fertilization process entails, see Reproductive Fertility Center, IVF Patient Overview, http://www .reproductivefertilitycenter.com/rfc/index.php?option=com_content&view=article&id=69& Itemid=71 (last visited Mar. 26, 2010). For further discussion of embryo issues, see NAOMI R. CAHN, TEST TUBE FAMILIES: WHY THE FERTILITY MARKET NEEDS LEGAL REGULATION (2009); Cahn & Collins, supra note 1, at 502–03 (discussing recent proposals to regulate the IVF industry). 6 In high risk cases, the doctors may conduct preimplantation genetic diagnosis (PGD) to screen the embryos for disease or other characteristics. See Fertility LifeLines, Assisted Reproductive Technologies: Preimplantation Genetic Diagnosis, http://www.fertilitylifelines .com/fertilitytreatments/pgd.jsp (last visited Mar. 26, 2010). Some parents elect to use ART to select an embryo that carries the parents’ disorder. See Jaime King, Duty to the Unborn: A Response to Smolensky, 60 HASTINGS L.J. 377, 379–80 (2008). 7 See infra notes 56–60 and accompanying text. 8 See id. 9 See id. 10 See Britney Glaser, The Fertility Dilemma: Frozen Embryos, KPLCTV, Mar. 27, 2009, http://www.kplctv.com/Global/story.asp?S=10081861; Anne Drapkin Lyerly et al., Fertility Patients’ Views About Frozen Embryo Disposition: Results of a Multi-Institutional U.S. Survey, 93 FERTILITY & STERILITY 499 (2010). 11 See infra pp. 10–11. Electronic copy available at: http://ssrn.com/abstract=1585988 2010] EMBRYO FUNDAMENTALISM 3 define the status of embryos in terms of the differing values their progenitors confer on them.12 Indeed, studies show that most of the patients who currently participate in IVF have multiple approaches to the meaning of the embryos they have created.13 Embryo fundamentalists, in contrast, include both some who are opposed to IVF entirely as inconsistent with human dignity and others who might embrace ART if the process were remade to reflect their values. The conflicts between these groups accordingly have both symbolic and practi- cal implications. The symbolic clash involves an extension of the abortion fight into the disposition of the hundreds of thousands of frozen embryos in clinic freezers. Proposals are multiplying to permit, and in many cases encourage, their transfer for reproductive purposes.14 At the same time, surveys show a majority of IVF patients would like to transfer their leftover embryos for research purposes.15 And the clinics that store them would like greater direction on their disposition, if only to avoid the continuing storage costs for embryos unlikely to be used for other purposes.16 The symbolic clash addresses embryo status and the issue of whether the state should treat embryos as human life from the moment of the conception or as human cells subject to the wishes of those who create them. Yet, these differences need not necessarily affect existing ART practices. Indeed, Louisiana enacted a statute that treats embryos from the point of conception until implantation in a woman’s body as “juridical persons” entitled to equal respect.17 Georgia has enacted provisions to facilitate embryo transfer that use the language of adoption and adoption-like procedures as part of the process.18 The fertility industry, which successfully 12 See Katheryn D. Katz, The Legal Status of the Ex Utero Embryo: Implications for Adoption Law, 35 CAP. U. L. REV. 303, 306 (2006) (outlining different views on the moral status of embryos); Paul D. Simmons, Perspectives: Protestant, THE RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE, http://www.rcrc.org/perspectives/protestant.cfm (highlighting Protestant perspective on reproductive issues); see also Angela K. Upchurch, A Postmodern Deconstruction of Frozen Embryo Disputes, 39 CONN. L. REV. 2107 (2007) (utilizing postmodern critique to explore questions surrounding frozen embryo disputes). 13 See, e.g., Lyerly, supra note 10; Denise Grady, Parents Torn Over Extra Frozen Embryos From Fertility Procedures, N.Y. TIMES, Dec. 4, 2008, at A26, available at http://www.nytimes.com/2008/12/04/us/04embryo.html. 14 See infra Part IV. 15 See Lyerly, supra note 10, at 506 (“Consistent with single-site studies from Europe and Australia, donation for research was the most popular option for disposition of excess embryos.”). 16 See id. at 500 (“[D]elayed decisions create difficulties for the providers who are responsible for safe storage or disposition of apparently abandoned embryos.”).

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